" That the Bill to
amend and codify certain branches of the Hindu Law be continued. "
Mr. Speaker : Motion moved
:

"
That the Bill to amend and codify certain branches of the Hindu Law becontinued. "

Mr. NaziruddinAhmad (West Bengal
: Muslim): May I know the
present stage of this very important Bill ? I understand
there has been a considerable amount of agitation among our Hindu friends over it and it
is better we have a picture of the stage at which the Bill
is at present.

The
Honourable Dr. B. R. Ambedkar: It was only introduced. No further stage
was taken.

Shri R. V. Dhulekar(U. P. : General) : In the new set up we should have no Hindu Law and Muslim
Law. We should have a general Law and therefore....

Mr.
Speaker: Honourable Member is speaking on the merits. He will have an opportunity of saying it when the Bill
comes before the House. At
present the only question is whether the Bill should be
continued or not continued.

VALIDATING BILL

Shri MohanLalSaksena: (U. P. : General) : Sir, since the Law Minister has informed me .that
he proposes to make a motion for reference of the Hindu Code to a Select Committee during the present session, I
do not want to move this motion.

Mr.
Speaker: DoI
understand that the Honourable Member does not want to make a motion now, but he wishes to
keep it alive?

Shri
Mohan Lal Saksena: Yes, Sir, In case the Law
Minister does not bring in his motion, I may have to move mine.

Pandit
ThakurDasBhargava (East Punjab : General) :
Sir, I beg to move tor leave to introduce a Bill to provide that marriages between Hindus,
Sikhs, Jains and their different castes and sub-castes are valid.

Mr.
Speaker : The question is :"That leave be granted to
introduce a Bill to provide that marriages between Hindus, Sikhs, Jains and their
different castes and sub-castes are valid."The motion was adopted.

Sir, it is a matter of great pity and also of
great regret both for myself and I believe also for the members of the House that so
important a measure as the codification of Hindu Law should have
come for discussion before the House almost at the fag end of the session. We have,
according to the arrangement announced by the Honourable speaker this morning, to conclude
the debate on this motion by 7 O'clock from now, with an interval of half an hour. I think
it my duty that within the limitations in which we are placed I should give more time to
Members of the Legislature to express their views on the various points raised by this
Bill and I should like to contribute my own mite to the fulfilment of this wish which I
have expressed. The only way by which I could do it is to set an example by myself to make
my opening speech as brief asI can possibly make. I regret it very much to have been
required to come to that decision because this Bill is of such a vast character that if
one were to expound it fully and thoroughly, and to explain its provisions as against the
background of the existing Hindu Law, I have not the slightest doubt that such an effort
would take not less than four or five hours. But that is impossible, and the House
therefore, will forgive me if I confine myself to placing before it the most salient
points which mark a departure from the existing law as we know it today.

Sir, this Bill, the aim of which is to codify
the rules of Hindu Law which are scattered in innumberable
decisions of the High Courts and of the Privy Council, which form a bewildering motley to
the common man and give rise to constant litigation, seeks to codify the law relating to
seven different matters. Firstly, it seeks to codify the law relating to the rights of
property of a deceased Hindu who has died intestate without
making a will, both female and male. Secondly, it prescribes a somewhat altered form of
the order of succession among the different heirs to the property of a deceased dying
intestate. The next topic it deals with is the law of maintenance, marriage, divorce,
adoption, minority and guardianship. The House will see what is the ambit and the
periphery of this Bill. To begin with the question of inheritance. Under this head the
Bill enacts a new principle, at least for certain parts of British India. As many members
who are lawyers in this House will know, so far as inheritance is concerned, the Hindus
are governed by two different systems of law. One system is known as Mitakashara and the
other is known as Dayabhug.
The two systems have a fundamental difference. According to Mitakshara, the property of a Hindu is not his
individual property. It is property which belongs to what is called a coparcenary, which
consists of father, son, grandson and great grandson. All these people have a birth-right
in that property and the property on the death of anyone member of this coparcenary passes
by what is called survivorship to the members who remain behind, and does not pass to the
heirs of the deceased. The Hindu Code contained in this Bill adopts the Dayubhag rule, under
which the property is held by the heir as his personal property with an absolute right to
dispose it of either by gift or by will or any other manner that he chooses.

That is one fundamental change which this Bill
seeks to make. In other words, it universalises the law of
inheritance by extending the Dayabhag rule to the territory in which the
rule of the Mitakshara now
operates.

Coming to the question of the order of
succession among the heirs, there is also fundamental difference of a general character
between the rule of the Mitakshura
and the rule of the Dayabhag.
Under the Mitakshara rule the agnates of a deceased are preferred to his
cognates; under the Dayabhag rule the
basis of heirship is blood relationship to the deceased and
not the relationship based on cognatic or agnatic relationship. That is one change that the Bill makes;
in other words, here also it adopts the rule of the Duyabhag in preference to the
rule of the Mitakshara.

In addition to this general change in the order
of succession to a deceased Hindu, the Bill also seeks to make four changes. One change is
that the widow, the daughter, the widow of a pre-deceased son, all are given the same rank as the
son in the matter of inheritance. In addition to that, the daughter also is given a share
in her father's property; her share is prescribed as half of that of the son. Here again,
I should like to point out that the only new change which this Bill seeks to make, so far
as the female heirs are concerned is confined to daughter; the other female heirs have
already been recognised by the Hindu Women's Right to Property Act of 1937. Therefore, so
far as that part of the Bill is concerned, there is really no change in the Bill at all;
the Bill merely carries the provisions contained in the Act to which I have made
reference.

The second change which the Bill makes so far
as the female heirs are concerned is that the number of female heirs recognised now is
much larger than under either the Mitakshara or
the Dayabhag.

The third change made by the (Bill is this that
under the old law, whether the Mitakshara or the
Dayabhag, a
discrimination was made among female heirs, as to whether a particular female was rich or
poor in circumstances at the death of the testator, whether she was married or unmarried,
or whether she was with issue or without issue. All these
consideration which led to discrimination in the female heirs are now abolished by this
Bill. A woman who has a right to inherit gets it by reason
of the fact that she is declared to be an heir irrespective
of any other considerations.

The last change that is made relates to the
rule of inheritance in the Dayabhag. Under the Dayabhag the father succeeds before in preference to the
mother; under the present Bill the position is altered so that the mother comes before the
father.

So much for the order of succession of heirs to
a deceased male Hindu. I now come to the provisions in the Bill which relates to intestate
succession to females. As Members of the House who are familiar with Hindu Law will know,
under the existing law the property held by a Hindu female falls into two categories; one
is called her stridhan, and
the other is called " woman's property". Taking
first the question ofstridhan, under the existing law stridhan falls into
several categories; it is not one single category, and the order of succession to the stridhan of a female under the existing law varies
according to the category of the stridhan; one
category of stridhan has a different law of
succession than another category and these rules are alike both as to Mitakshara as they
are to the Dayabhag. So far as stridhan
is concerned the present Bill makes two changes. The one change it makes is that it
consolidates the different categories of stridhan
into one single category of property and lays down a uniform rule of succession; there is
no variety of heirs to the stridhan in
accordance with the different categories of the stridhanall
stridhan is one and there is one rule of
succession.

The second change which the Bill seeks to make
with regard to the heirs is that the son also is now given a right to inherit the stridhan and he is given half the share which the
daughter takes. Members will realise that in formulating this Bill and making changes in
rules of succession, it is provided that while the daughter is getting half the share in
the father's property, the son is also getting half the share in the mother's property so
that in a certain sense the Bill seeks to maintain an equality of position between the son and the daughter. Coming to the question of the " woman's estate ", as
members of the House will know under the Hindu Law where a woman inherits property she
gets only what is called a ' life estate '. She can enjoy the income of the property, but she cannot
deal with the corpus of . the
property except for legal necessity; the property must pass after the death of the woman
to the reversioners of her husband. The Bill, here again,
introduces two changes. It converts this limited estate into an absolute estate just as
the male when he inherits gets an absolute estate in the property that he inherits and
secondly, it abolishes the right of the reversioners to
claim the property after the widow.

An important provision which is ancillary to
the rights of women to inherit property contained in this Bill is a provision which
relates to Dowry. All members of the House
know what a scandalous affair this dowry is;
how, for instance, girls who bring enormous lot of property from their parents either by
way of dowry orstridhan or gift are treated, nonetheless, with
utter contempt, tyranny and oppression. The Bill provides in my judgment one of the most
salutary provisions, namely, that this property which is given as dowry to a girl on the occasion of her marriage
shall be treated as a trust property, the use of which will inure to the woman and she is
entitled to claim that property when she comes to the age of 18, so that neither her
husband nor the relations of her husband will have any interest in that property; nor will
they have any opportunity to waste that property and make her helpless for the rest of her
life.

Coming to the provisions relating to
maintenance, there is mostly nothing new in this part of the Bill. The Bill prescribes
that the dependents of a deceased shall be entitled to claim maintenance from those who
inherit his property either under the rules of intestate succession or who inherit the
property under his will. There are II different kinds of dependants enumerated in this
Bill. I believe, at least speaking for myself, it is an unfortunate thing that even a
concubine is included in the category of dependants, but there it is; it is a matter for
consideration. The liability to maintenance is cast upon those who take the estate of the
deceased. As I said, there is nothing very new in this part of the Bill.

There is another part of the Bill which is
important and it relates to the rights of a wile to claim separate maintenance when she
lives separate from her husband. Generally, under the provisions of the Hindu law, a wife
is not entitled to claim maintenance from her husband if she does not live with him in his
house. The Bill, however, recognises that there are undoubtedly circumstances where if the
wife has lived away from the husband, it must be for causes beyond her control and it
would be wrong not to recognise the causes and not to give her separate maintenance.
Consequently the Bill provides that a wife shall be entitled to claim separate maintenance
from her husband if he is (1) suffering from a loathsome disease,
(2) if he keeps a concubine, (3) if he is guilty of cruelty, (4) if he has abandoned her
for two years, (5) if he has converted to another religion and (6) any other cause
justifying her living separately.

The next topic to which I wish to make a
reference concerns the question of marriage. The Code recognises two forms of marriages.
One is called " sacramental
" marriage and the other is called " civil " marriage. As
members will know, this is a departure from the existing law. The existing Hindu law
recognises only what is called " sacramental " marriage, but it does not recognise what we call a " civil " marriage.
When one considers the conditions for a valid sacramental marriage and a valid registered
marriage, under the Code there is really very little difference between the two. There are
five conditions for a sacramental marriage. Firstly, the bridegroom must be 18 years old,
and the bride must be 14 years old. Secondly, neither party must have a spouse living at
the time of marriage. Thirdly, parties must not be within prohibited degree of
relationship. Fourthly, parties must not be sapindas of each other.
Fifthly, neither must be an idiot or a lunatic. Except for the fact that similarity of sapindaship is not a bar to a registered marriage.
so far as other conditions are concerned, there is no difference between the
sacramental marriage and the civil marriage. The only other difference is that the
registered marriage must be registered in accordance with the provisions in the Bill while
a sacramental marriage may be registered if parties desire to do so. Comparing the rules
of marriage contained in the Bill and the existing law, it may be noticed that there are
three differences which the Bill makes. One is this, that while the existing law requires
identity of caste and sub-caste for a valid sacramental marriage, the Bill dispenses with
this condition. Marriage under the Bill will be valid irrespective of the caste or
sub-caste of the parties entering into the marriage.

Pandit
ThakurDasBhargava (East Punjab: General): If
the marriage is between persons belonging to different castes, will it be valid?

The
Honourable Dr. B.R.Ambedkar: Let me proceed
with my speech. If the Honourable Member puts the question while making his speech, I
shall reply to it.

The second
provision in this Bill is that identity of gotrapravara is not a
bar to a marriage while it is under the existing law. The third distinctive feature is
this, that under the old law, polygamy was permissible.
Under the new law it is monogamy which is prescribed. The
sacramental marriage was a marriage which was indissoluble. There could be no divorce. The
present Bill makes a new departure by introducing into the law provisions for the dissolution of marriage. Any
party which marries under the new code has three remedies to get out of the contract of
marriage. One is to have the marriage declared null and void; secondly, to have the
marriage declared invalid; and thirdly, to have it dissolved. Now, the grounds for
invalidation of marriage are two: One, if one party to the marriage had a spouse living at
the time of marriage, then such a marriage will be null and void. Secondly, if the
relationship of the parties fell within what is called the
ambit ofprohibited-degrees,
the marriage could be declared null and void. The grounds
for invalidation of the marriage are four. First, impotency. Second, parties being sapinda. Third,
parties being either idioticor lunatic.Fourth,guardian'sconsent
obtained by force or fraud. In order not to keep the sword of dissolution hanging on the
head, the Bill, in my judgement very wisely, has provided a limit to an action for
invalidation. It provides that a suit for the invalidation of marriage must be filed within three years from the date of the marriage; otherwise the suit will be barred and the marriage will continue as though there was no
ground for invalidity. The Bill also provides that even though the marriage may be
invalidated and may be declared invalid by a court of Law, the invalidation of marriage
will not affect the legitimacy of the children born and they
would continue to be legitimate just the same.

Then coming to the
question of divorce, there are seven grounds on which divorce could be obtained. (1)
desertion, (2) conversion to another religion, (3) keeping a concubine or becoming a concubine, (4) incurably
unsound mind, (5) virulent and incurable form of leprosy, (6) venereal diseases in
communicable form and (7) cruelty.

Coming to the question of adoption, there
again, most of the rules embodied in the Bill are in no way different from the rules
obtaining under the present law. There are two new provisions in this part dealing with
adoption. Firstly, under the Code, it will be necessary for the husband if he wants to make an adoption to obtain the
consent of his wife and if there are more than one, at least the consent of one of them.
Secondly, it also lays down that if the widow wants to adopt, she can only adopt if there
are positive instructions left
by the husband authorising her to adopt and in order to
prevent litigation as to whether
the husband has, as a matter of fact, left instructions to
his wife, the code provides that the evidence of such instructions shall be either by
registered deed or by a provision in the will. No oral evidence would be admissible, so
that chances of litigation are considerably mitigated. The Code also provides that the
adoption may also be evidenced by registration. One of the most fruitful sources of
litigation in this country is the question of adoption. All
sorts of oral evidence is manufactured, concocted; witnesses are suborned; widows are
fooled; they one day declare that they. have made one adoption and subsequently they make
an avowal that they have not adopted and in order that all this litigation may be put a
stop to, the Code makes a salutary provision that there may be registration of adoption by
a Hindu.

Then there is the question of minority and
guardianship, the last subject which the Bill seeks to
codify. There is nothing new in this part of the Code and, therefore, I do not propose to
say anything so far as that part in the Bill is concerned.

As members will realise, the points which arise
out of this Bill for consideration and which are new are these:
First, the abolition of birth-right and to take property by
survivorship. The second point that arises for consideration is the giving of half-share
to the daughter. Thirdly, the conversion of the women's limited estate into an absolute
estate. Fourthly, the abolition of caste in the matter of marriage and adoption. Fifthly,
the principle of monogamy and sixthly the principle of divorce. I have sought to enumerate
these points separately and categorically because I felt that in view of the limited time we have at our disposal, it would
be of help to the Members of this House if I could point out what are the points of debate
on which attention may be concentrated. These departures
which are made in this Bill undoubtedly requires justification, but I think it would be a waste of time if I at this
stage undertook any defence of the departures enacted by this Bill. I propose to hear
Honourable Members as to what they have to say on the points which I have enumerated and
if I Find that it is necessary for me to enter upon a
justification, I propose to do so in the course of my reply. Sir, I move. Mr. Chairman : Motion moved:

[f5]
Dr. B.PattabhiSitaramayya (Madras: General): Mr. Chairman,
Sir, I rise 'at an early moment in order to catch your eye
in the hope that I shall have the ear of the House while having the eye of the Chairman.
This is a very interesting piece of legislation which has been presented to this House, a
piece of legislation for which the country has been whiting for long. This country having
passed under the rule of foreigners for nearly a thousand years has not been able to
effect that social progress which is incidental to changes in society in the world and
which takes place imperceptibly by force of ever-changing custom. Custom is a force which
is generally patronised, appreciated and recognised by the rulers. Unfortunately, this
country has had no kings for a long time to whose inspiring example the subjects could
look up for any changes in society. In the West, even today, if a social change is
required all that is to be done is for the King to initiate that change and all the people
will follow as a matter of course. You might have heard the story of Edward the Eighth,
who, when he was Prince of Wales, went to a far distant island and having heard from the
people that their occupation was gone because of the change of fashions, asked what the
fashion was which had mined the occupation. They said formerly they were manufactures of
straw hats and now straw hats had given place to felt hats and therefore, they had lost
their occupation. The next day he appeared in public on a ceremonial occasion with a straw
hat and the straw hat industry was at once revived. That is the power of the king; he is
not merely the political head of a State, but head of society, the exemplar, the mentor
and the monitor. As such he evaluates the customs age long, traditional and
hoarysanctified by age and it lies in his power to change that custom one way or the
other. But what has been our fate since the British rule had come into existence? So long
as the Muslims were ruling this country, they copied our customs and we copied their
customs; there was an inter-mixture and intercurrency of
customs and therefore, some measures of social progress. But
after the British came, when they came to be looked upon as untouchables and even
unapproachables by the vast majority of the population of this country, the situation was
that they were afraid to touch the customs of this country with the longest pole. They
were afraid of any interference with the socio-religious
structure which was a delicate structure almost like a chemical balance and bore the
repercussions of the smallest change coming from abroad and from adventitious sources.
They were afraid that such repercussions would be ruinous to the stability of their empire
in this country and therefore, they adopted the plausible and seemingly reasonable
attitude of not interfering with the religion or the custom of the land. In this manner
the Judges of the High Courts always helped to register the custom as it had existed for
long centuries behind, and never registered a change in the custom as marking a progress
in society. Thus custom became petrified and when custom became petrified, progress became
impeded altogether, and for a hundred and fifty years our society has not been able to
make any progress. If social evils had been pointed out by missionaries at one stage they
were so pointed out in a spirit of carping criticism rather than in a spirit of
progressive helpfulness. And as time advanced and English
education took root and as democracy spread its tentacles and got firm hold upon the
affections of the people another change came into being. The
very missionaries and clergymen who were so keen on educated Indians throwing off the
trammels of their orthodoxy became suddenly conservative and critical of the drastic
changes which the English educated people were taking to
with a certain amount of irresponsible case. They began to inquire whether after all these
people who were so readily taking to these changes meant to take to these changes or
whether they were simply growing away by way of relaxation
the rigid customs of age and of society. They did not like it because the spirit of reform
is always destructive of their own power. In the encouraging of reform themselves they saw
the dangers to their rule and the missionary saw at once that he was encouraging a certain
amount of rebellious spirit in the nation. Now Brahmoism was looked upon as the saving factor in this country,
but Brahmoism was
thereupon condemned by the missionary because it provided a halting house for the reform
spirit of the nation. Thus the missionary himself became conservative. Englishmenbecame conservative, custom became rigid, society
became petrified and congealed and coagulated, as it were,
in a chamber which was not wide or expansive, thus, we have
suffered, so much so that the issue of a post-puberty marriage in the Punjab was declared
illegitimate by the High Court. This was the last straw that broke the back of progressive
society. Immediately, there was an attempt to break the
bones of custom, by trying to reform the marriage law. Act 3
of 1870, popularly known as the Brahmo Marriage Act, required, however, a certain denial
statement, " I repudiate that I am a Hindu or a Muslim
or a Christian or a Parsee or a Jain or a Jew. "This obnoxious declaration
was associated with the provisions of that Act. Therefore, it did not become popular.
Later on the Sarda Act came into
being; fortunately it has set the seal of authority upon that piece of social
reform which the heads of orthodoxy were imposing and were impeding. A new era has begun.
The Indian National Congress which had started in 1885 had till 1919 associated with it as
an ancillary and an auxiliary a social reform organisation which dealt with the social evils of the country and suggested various
legislative measures also. But there was a non willingness on the part of the British Government to effect
those legislative changes and as time progressed there was also an unwillingness on the
part of society to accept the social reform at the hands of foreigners in this country.

Fortunately, Sir, today we have survived those
times, I am glad I am alive to see the age when on the initiative of the National
Government aprogressive
measure of reform, comprehensive in outlook, far-reaching in its result, medical in its
nature, is being put forward, which embraces the rights of
women in regard to inheritance, in regard to marriage, in regard to property, in regard to
divorce, in regard to personal freedom. And I hope, as lime
advances we shall have more and more of reforms in this
direct ion to which this measure points today.

Let us start with the full rights that have
been conferred upon the woman after the death of
her husband. In our Shastras
it has been briefly described that the woman is the bond
slave of her father when she is young, to her husband when she is middle aged and to her
son when she is a mother. Of course all epigrams, aphorisms, proverbs, platitudes and
truisms are half truth's. There is a core of truth about
them. We sometimes find it useful
to quote these things but there is a core of untruth also about them and we should try to
understand the full significance of all these.

According to the measures before us, a woman
will have property in her own right and be able to dispose of her property. I have been
trying to see whether the Law Minister would explain when these rights would come into
force. Supposing after the passing of this measure a man dies and his widow inherits his
property: what are her rights
compared with the rights of a
widow whose husband died one year ago? The latter possesses
limited estates. What is the
change sought to be introduced? Can widows with only limited estates convert those limited estates into full
right estates with the right to give away, to mortgage, to
sell and so on, irrespective of whether there is legal necessity in the interests of the
family or not? That is a point which I have been trying to understand by turning up the
pages of the measure before me but I have not been able to understand it. I dare say, in
his reply the Mover of the Bill will be so good as to elucidate the point.

The ' rights ' of the daughter is a matter on which I have been feeling very keenly. When speaking to English people or when
discussing Indian conditions and society with savants and scholars coming from abroad, I
have never been tired of-praising my own system. If you wish
to understand the basis of a system, or appraise any of its social customs or practices,
you must not take it in its present degenerate condition.
But you must take it in all its pristine purity and glory. I
look upon child marriage as a splendid institution as our ancients conceived it because they conceived it
good for the average man and the average woman to be
married. And this marriage is a good thing because the child has to be grafted into
another family and grafting should take place while the plant is young and not when the
plant has become old. But then, the conception itself has changed. Now we live in an age
when it is much more happy to be bachelors and criticise others' wives than to marry and
beget children. Therefore, our ideals have changed and therefore, the principle of child
marriage may not be binding upon us. Each one is at liberty to live his or her own life
according to her or his pleasure and there is no obligation imposed by society and social
conditions have changed. Under the circumstances we should not indeed be the victims of
past tradition, past customs, past events.

But how shall we deal with the facts which
exist at the present day: so many daughters and so many sisters are not merely vegetating
but they are rotting in their homes. While we praise our
systems to others, we cannot shut from our own eyes the fact that our sisters and
daughters and other relations are rotting in their own homes unable to get any relief.
Latterly I have suggested a love strike for our women. That is the only remedy which I
have thought out and I have been able to think it out as a remedy directed against this
custom. I read a book called " The Impregnable Women " while I was in the Ahmednagar
Fort. There was a war in England and all the women wanted to resist the war. How could
they resist? The men are greedy. The men are pugnacious and blood-thirsty. They want to fight. They want to measure the strength
of the tiger and ape it them with the strength of the ape and tiger in others. Therefore,
the women said: let us have a love strike. No young maiden
would speak to her lover; no wife would speak to her husband; no mother would speak to her son. The men were boycotted. There was no social life
between men and women until the war about to be declared was cancelled. They said they
would not mix with these people. But, I will not push the matter further. I Suggest that if in a village, or town, or mohalla, there is ill-treatment of a single woman, all our
wives had better have a club and go awayfrom our houses and live there for 24 hours and very soon the
recalcitrant husband will be brought to his senses. All the men will bring their moral
influence to bear upon this man and they will tell him: "
What the hell are you doing? All our homes are broken up and
they will remain broken unless you take back your wife. "

You may laugh now. But what else are you going
to do? Are you going to prosecute the man? He will bring up
his charges. Are you going to prosecute the wife? She will bring a number of charges. You
should not enter into the quarrels between husband and wife.
Once I found a husband beating his wife. I went and interfered. The woman turned round and
came down on me like a wolf on the fold. She said:" It is my husband who is beating me. Who the hell are you
to interfere?" Therefore, it is not possible for you easily to interfere in domestic affairs. After all the Kowravas and Pandawas when they fought, they used to say :" we are I (X) against 5
but against a third party they said we are 100 plus
5 " So in these domestic quarrels both are against us
when we meddle in their affairs. So if the daughter is to be happy she must be able to
inherit property in her own right I find that the position of a wife is most obsequious.
Her sister's son comes. Her brother comes. She wants to give them a good present. But the
wife has to wait upon the goodwill of her husband in order
to get even Rs. 5: After all
this man has his moods. And he may be in a good mood or a bad mood. So she must have some
property which she can call her own. Would you wish her to get rid of some of her jewels?
The idea is fantastic. No woman will sell away her jewellery even after her husband's
death because after her husband's death that jewellery
stands as the symbol of the unity of herself and her deceased spouse. I know it. I have
spoken to many women.

Mr. Chairman : Does the Honourable Member want to speak for a longer time?

Mr.
Chairman: The House will now adjourn for half an hour
and reassemble at Half Past Five of the Clock.

The
Assembly then adjourned till
Half Past Five of the Clock in
the afternoon.

The Assembly re-assembled
at Half Past Five of the Clock, with Mr. Speaker (The
Honourable Mr. G. V. Mavalankar)
in the Chair.

Dr. B.PattabhiSitaramayya: Mr. Speaker, I was dealing with the question of a share
for the daughter from the patrimony. I am in the habit of twitting
my lady friends by asking them " Why do you want a
share ? You are going to become the queens of another home.
My wife has become the queen of my home and she is the unquestioned head of the family.
She is getting the keys of her own safe and so will you get the keys of the safe of
another home." But that is not enough. It is not enough to be at the mercy of a
husband, however dear that husband may be. A woman must have her own right and when she
has her own right she is better respected by the husband and although the doctrine of
self-effacement on the part of the woman has been carried on in our country and society
for ages long, yet the fact remains that in the modern day the conception of self-respect
has completely altered the position. One must be able to say that she has a little money
to deal with in her own right.

Hitherto I have had a little doubt as to
whether we are not depriving all the sons of the share to which they are legitimately
entitled if the daughter also comes in for her share. Now the Bill before us gives a share
in the stridhana
to the sons to the same extent to which the daughter is given a share in the father's
property. That largely equalises things and warns all parents that they should have an
equal number of sons and daughters. That is the only condition that is imposed upon us and
that will be able to balance our economy. We must also balance our progeny.

But there is another difficulty. After all as
things stand, it looks as though we cannot say hereafter in marriage invitations that my
daughter is being given in marriage to so and so. there will be a new language adopted. My
daughter and so and so will marry each other. That is the new language adopted. Still the
fact remains that except in Malabar, where the husbands go
to their wives' houses, here our daughters generally go to their husbands' houses. Of
course the position in Malabar is entirely the reverse of our conditions and it will take
hours to deal with the question. I am not going to stray into that very interesting topic.
Yet the fact remains when the daughter goes away from her father's home, the wonder is
whether she is able to enjoy the property that is given to her by her parents. I have
asked my Muslim sisters and brothers as to whether the
age-long custom of giving a half share to a daughter, half of the son's, is really
practically, enjoyed. They said that except in towns it is not enjoyed. Somehow or other
the brother does the sister in the eye and knocks off her property and gives her some
compensation. That may or may not be so but the fact remains that there is that supreme
danger and the greatest danger in this matter is that when
you recognise the fact that 80 per cent of pattadara are able to pay only Rs. 10 as tax on 21/2 acres of wet land or four or five acres
of dry land, where on earth is there a chance for them to give a share to the daughter,
which she can carry with her or which she can enjoy. I doubt very much from the practical
side but on the theoretical side at any rate the thing is
unquestionably quite correct.

When thus you have raised the status of women
in society and when you have conferred upon her the right to absolute property then you
must also give her certain rights which self-respect engenders in her naturally. The
conditions of marriage are not conditions of slavery. It is all very well to say that
marriages are made in heaven and that once a husband always a husband or once a wife
always a wife. It is a very good rule but at the same time there are conditions like
drunkenness, persistent cruelty, immoral character on the part of the husband, diseases
like leprosy, impotency and various other conditions which are enumerated by the Law
Minister which justify a separation of the husband from the wife. If a man feels free and
has the right to stray abroad and to whatever he wants to do, if he can marry a second
time when the first wife is alive, then of course it must be equally open for the wife
also to marry a second husband while the first one is alive. Imagine that condition. I
sometimes ask friends when I see a young man dressed in hat, boot and suit and by the side
goes a nicely clad Hindu lady dressed in all the beautiful folds of the Hindu saree" Will you kindly
reverse your dresses? Will the husband wear a dhothi and the wife a hat and skirt of a
European woman.. how will it
look?" It will look absurd, as absurd as when you sign your name in your mother
tongue over an English document. Once an officer asked me not to sign in Telugu over an English document. Then I said that the reverse
situation of an English signature over a Telugu document is equally
incongruous. Therefore, we must give full freedom to our sisters, mothers and daughters
and enable them to have judicial separation, if necessary and divorce. But I trust and
hope that the distinguished ladies who are here and who have been labouring for years in
the cause of rights for women will preach and propagate the fact and the doctrine that
divorce is a reserve fund not to be drawn upon for current expenses,
that divorce should be the ultimate resort for causes which are otherwise irremediable.
Public opinion, personal influence, family persuasion, all these are there. You must
remember that the quarrels between a husband and wife during the day are generally closed up in the night and therefore, there is not much chance of
perpetuating these quarrels. We should not make much of them. In America there is a State
called Indianopolis, where the porter cries " Indianopolis Station, Twenty minutes for divorce."
The divorce court is in the railway station itself. Any husband and wife having a quarrel
in the train, could apply for divorce and get it before the train departs. That should not
be our position. Our divorce must be a kind of reserve fund like the jewellery on a
woman's person, always to be drawn upon under conditions of the greatest necessity and
never to be lightly utilised.

The question of adoption is a very difficult question, the Honourable
Law Minister has assimilated the Mitakushara practice to that of the Dayabhaga. I
suppose Dayabhaga obtains in
Bengal and Mitakashara in
South India and in Bombay there is a law called Muyuka, according to which
amongst the non-Brahmins it is not necessary for the husband
to give permission and the widow can adopt a child. I had read a judgment of the Privy
Council some ten or twelve years ago. I want that law to be copied in other parts, where such adoption is not permissible according to
Mitakshara. After
all why does a family adopt a boy ? To perpetuate the
family. Is it not the right of the widow to perpetuate the family as much as of the deceased husband? Is it only the exclusive right of the man who is
deceased to perpetuate the family. If a boy could inherit
the property, why should it not be open to the mother to adopt the boy in her own right
apart from the written or the registered permission of her husband either by a document or
by a will. In English law oral wills are permissible; whereas written wills require two
signatures, oral wills require no such thing. After all, by oral wills properties worth
lakhs and crores are alienated. "
All to wife " on a newspaper bit is held to be a valid
will. Then why should it not be permissible in law for a husband to give permission orally
to his wife in order that she can adopt. These are points which the Select Committee will
have to give its consideration to. (An Honourable Member:" Why permission at
all? ") That is my contention. If permission is
necessary why not oral permission? Relax the law regulating adoption as much as possible.

Then there is the question of monogamy. I am
very sorry to note that young girls in their blooming youth do not understand all the
conditions that must be observed in regard to the proper selection of match for marriage.
We have an ancient saying which when rendered into English says:
You must consider the prosperity, good looks, tradition, pedigree, cultureall these
things you must consider before you select a husband. But now it has become rather
commonand a very distinguished authority has confirmed the statementthat
educated girls have the habit of picking readymade husbands
who have already got a wife and five or six children. Why does this happen? It is due to
the want of education during their college days about these matters. Somehow these things
are considered taboo and everybody shrinks from talking about them although a lot of
private talk is inevitably done in regard to these matters. The forbidden fruit has never
remained untasted. Therefore, it is necessary that we provide teaching in regard to these
matters. I once spoke to a certain friend of minehe has given freedom to his
daughter with regard to the selection of his son-in-lawand in the course of his
conversation he told me a story which I later related to his daughter and son-in-law much
to their amusement. She was asked by him, " Do you wish
to marry so and so, a boy who is handsome, good-looking, is well educated, passed B.L., or is in the profession, is the son of a rich man and has
an upstair house " and she said " No, father, has he got no motor car and electric lights? If he has got a
motor car and electric lights, no matter to whom you give me in marriage I am willing to
marry him". Such are the temperaments, tendencies and trends of untutored youth and
therefore, it is very necessary that we should teach them about all these matters. It is
not enough to make laws: but it is necessary to propagate these laws and propagandise
these laws in order to educate our young girls in the direction of monogamy. That is very
necessary.

I welcome every aspect of this Bill. If there
are defects which are obvious here and there I daresay they will be remedied by all the
distinguished personalities whose names have been mentioned in connection with the
formation of the Select Committee. I have taken a little
more time than necessary. Perhaps, I can hold forth for hours together. I have got the
experience of 68 years covering a careful study of all kinds of conditions and I would
have liked very much to continue except for the fact that today's time is limited and we
must apply the guillotine at 7 O'clock and some of our sisters and brothers are very
anxious to speak and I am also anxious to hear them.

[f6]Mr. NaziruddinAhmad (West Bengal : Muslim) : Sir, I am in the
most unfortunate position of having been charged with the communication of certain views
which have been entrusted to me by some of my friends. They are some criticisms of the
Bill. I must however assure the House that personally I would fully
support the Bill. Its provisions are largely in accord with the laws which prevail in my
own community and the Bill tries to do absolute justice to all regardless of practical
results. It is however, with some amount of nervousness that I have risen to speak. When I
find that sturdy members of the House who would have spoken against the Bill have quailed
before a powerful array of five distinguished members of the fair sex, ready to stand to
their guns, little courage can I muster in giving out the views which I am charged to
communicate.

Sir, the Honourable the Law Minister has not
told us anything about the opinions that have been collected and printed in the pamphlets
which have been circulated to us. They were made available to us at a very late stage. If
it was desired that Honourable Members should read them, analyse them and tell the House
the result of their analysis I think the time is too short. There is a pamphlet the Report
of the Hindu Law Committee which contains a large number of opinions. I am sorry this was
not circulated amongst the members.

(An
Honourable Member :" It was circulated "). It was not. This book was not circulated.

The
Honourable Dr. B.R.Ambedkar: It was kept in the
Library for a very long time.

Mr. NaziruddinAhmad:It
was not kept in the Library for a very long time. It has been placed in the Library very
recently. I had to buy it from the market. It is only recently that some copies were kept
in the Liberary.

Mr. Naziruddin Ahmad:
The Report has been published only recently. I submit that in this Report there is a
dissentient minute of the late Justice D. N. Mitter. He has collected a large number of opinions against the
Bill. I do not wish to read them. He has classified them province by province and subject
by subject. There is no time to deal with them, but he has said that the principles of the
Bill are opposed by the entire Hindu community, that is the orthodox section of the
community.

I have studied as carefully as it was possible
for me within the short time available, the recent opinions on the Bill obtained by the
Government and circulated to us. I find there is a volume of opinion against the Bill. In
fact, at the time when the Committee was hearing evidence the evidence in Bengal was also
all one way. Now in the opinions circulated I find the opinion in West Bengal is all one
way. It is clearly against the Bill. What is remarkable is that there is an opinion by the
Secretary of the Government of Bengal in the Ministry of Law. That opinion is to be found
in paper No. 4, opinion No. 17. That opinion is against the Bill. It says that this is not
a proper time to take the Bill. (An Honourable Member: ' When was that
'?) It bears no date. It has been circulated only recentlyfive or six days ago. In
fact it says that the Bill is of far-reaching importance and enough consideration has not
been given to the opinions expressed. The House will be pleased to consider the different
categories of objections. One is that, this Bill should not be considered by a mixed Legislature consisting of members of various communities. It
is for this reason that I am particularly anxious to speak as it was feared that men of different communities will rather support the
Bill and spoil the cause of orthodox Hinduism. It is for this reason that I hasten to
declare that I am not supporting the Bill as the Hindu community
is much against it.

One of the objections is that the introduction
of women's spares would introduce litigation. There are many
opinions that this would lead to excessive fragmentation that it will lead ultimately to
the destruction of that joint family system amongst the Hindus which has saved the
community from the destructive effects of fragmentation from which the Muslims most
terribly suffer. It is said also that the Hindu lawthe Vedic literature and the post Vedic literature known as the "Srutis "and the "Smritis"
have a divine origin. But the present Bill goes, it is said,
against the very structure, the very religious basis and the very religious structure of
the Hindus. It is on this ground that is seriously opposed. It is argued that you cannot, regard all this religious law, all this sacred literature as
so much nonsensical superstition. They have kept the Hindu
society alive for ages though it is quite true that society cannot remain stagnant. It
must move. But it must move cautiously and with experience.

The present Bill makes a change with a sweeping
stroke. Another point that has been made apparent in these objections is that the present
Legislature was elected on one issue, namely the attainment of independence. The present
Bill, which is really of a very sweeping and complicated character, and its principles have not been before the public and it would therefore, be better
to wait to digest opinions and to pass a constitution and hold elections making this a definite issue
before the public. It will then be seen whether the public
at large really desire it. In fact it is said that the Bill was not properly circulated.
Many associations got only a few days' time or even a few
hours time to consider and give their opinions. In these
circumstances it is argued that the Bill should not be taken into consideration at this
stage.

Then there is another important aspect of the
question. The Bill attempts to make the law applicable to Hindus uniformly throughout
India, but it has been pointed out that the effect of uniformity will not be attained in
view of the shortness of time. It is well known that agricultural land is beyond the
purview of this House. It is a provincial subject. Whatever law we may pass will affect
only non-agricultural land, whatever that expression may mean. That expression is also
vague. It has been defined in the Income Tax Act for the purpose of taxation and this Bill
as well as many other Acts have taken that as the basis. There may be lands which lie
midway between agricultural and non-agricultural lands. In fact, apart from this
distinction, a large proportion of our propertyabout 80 per centconsists of culturable land. Thus it is perfectly clear that the Provinces
will have to deal with-them and they may deal with them in a
different manner and some provinces may not deal with them at all. And then again we have
the acceded States. Though Hindu Law is to be the
sameand it is attempted to make it uniformthe States people may legislate or
may not legislate, and in case they legislate they may make
different provisions. In fact the Provincial Governments and the States will be largely
guided by local custom and local opinion and I believe it will be extremely difficult for
the West Bengal Legislature to pass a law which is so much against the opinion of that
Province. It will therefore come to this that if we pass this law the result would be that
in the case of a man having two classes of propertiesa house or building and certain
agricultural landone set of law will apply to non-agricultural land and another set
of law will apply to agricultural land. Whatever law you pass, it should be uniform and it
would be far better to collect opinions from the Provincial
Governments and to ask for their consent to give jurisdiction to this House to pass a comprehensive legislation as we have done in some cases. If
comprehensiveness and completeness is the objective, it is better that the Central Legislature should be armed with their consent and
deal with it on an all-India basis, and it would also be a proper thing to ask the States
to co-operate in this matter. These are some of the difficulties.
As we are working against time, it is impossible, as the Honourable
the Law Minister has pointed out, to deal with even some of the
salient features of the Bill. It is also impossible to deal with some of the objections
except from the border point of view. One thing that strikes me is that the opinions have not been very carefully
studied. We have not got any analysis of these opinions collected point by point and
supplied to the members to enable them to deal with them. It is very difficult for private
Members to read the opinions at a high speed and to analyse them, store them in different
compartments of their brains and use them in a classified form. On a matter of such great
importance as this, it would have been extremely desirable for the Honourable Minister's
Department to classify the opinions, as was done before in such cases, and circulate them
to enable members to consider each point in the light of the objections or support in
respect of each of them.

Mr. NaziruddinAhmad: I am grateful for the remark, but the
opinions of which I am speaking have been received and circulated after the report. In
fact the opinions which have been circulated by the Department were received only recently
and they are on the Bill as it is. But the opinions collected in the Report of the Hindu
Law Committee were collected before the drafting of the Bill, that is during the enquiry
stage. The Honourable Member has missed the point that the opinions I am speaking of are
not those published in the Report. They were separately printed and circulated. These are
the opinions which I talk of. I think these should have been carefully analysed and
printed along with the various points. Sir, I do not wish to labour the matter. Personally
I am in favour of the Bill, but these are some of the objections which I have been asked
to put forward by certain of my friends. That is the reason why I have put them before the
House. There are a large number of other points, but they are of a minor nature. In view
of the shortness of the time at our disposal I think I should cut short my speech. Then
again legislation should rather follow public opinion. It should follow rather than create
or override public opinion, and I am giving a quotation from a famous authority, the
father of modern politics, EdmondBurke.
He said on a famous occasion:

" To follow, not to force the public inclinations, to give direction, a form and technical dress and a
specific sanction to the general sense of the community is the true end of
legislation."

But it has been pointed
in the objections that there
is no public opinion behind this Bill. It is pointed out in some of the objections that
only some of the educated section and some of the
ultra-modern section are behind it, but the masses, most of whom
are ignorant, are indifferent to it and it has not been fully circulated in the way a
subject of this importance should have been. In these circumstances, I submit this for the
consideration of the House that it would have been better if the House gave directions to
the Select Committee in matters of a disputed nature, but in this case we are sending the
Bill without any directions. I should seek a little
clarification from the Honourable Minister for Law. With these few words. Sir, I hope the points raised in the objections would be
carefully considered and due decisions would be reached.

With regard to the personnel of the Select
Committee, nothing could be said. The ablest, the most authoritative and most
well-informed of the Members have been taken in it and I hope and believe that they will
do full justice to the objections raised against the Bill.

[f7]ShrimatiHansaMehta (Bombay : General) : Mr. Speaker, Sir, I congratulate the Honourable Minister for
bringing this Bill even at this late hour of the Session. I also congratulate or rather I
express my sense of gratitude to Sir B.N. Rau and his colleagues for the great labour they have
bestowed on the Report on which these recommendations are based. This Bill to codify the
Hindu Law is a revolutionary Bill and though we are not quite satisfied with it, it will
be a great landmark in the social history of the Hindus. But since this Bill was drafted
many things have happened and one of the biggest things that has happened is the
achievement of our political freedom. Our new Constitution is in the making; we have
already agreed upon the fundamental principles on which this new Constitution is to be
drafted. The new State is going to be a democratic State and democracy is based on the
equality of individuals. It is from this point of view that we have now to approach the
problems of inheritance and marriage etc. that are before us. The Select Committee will
therefore, have to see that the new Bill is drafted on these principles.

It is true that the Code has abolished the six
discrimination with regard to inheritance. A woman is
recognised as an heir and she is also entitled to enjoy her property in her full rights;
that is, the Code has abolished the limited estate of the woman. Even then we feel that it
does not go far enough. A daughter who is recognised an heir inherits the property, but
she inherits half the share of the son. This violates the principle of equality on which
we have again and again said that our new Constitution is going to be baseda
Constitution which aims to secure for the people of this country justice, social,
political and economic. We, therefore, feel that the daughter should get an equal share in
the property of her father with the son and the son also should get an equal share in the
property of his mother with the daughter. It is also argued that a daughter gets her share
from her father as well as from her husband, while the man does not get anything, from his wife. We have already proposed, that is the Women's
Organisations have said, that the husband can also inherit the property of his wife in the same way that the wife inherits the property of her
husband. In the Indian Succession Act the provision for the inheritance of husband is
already there and I think we shall do well to copy that provision.

People have argued, and the honourable friend
who spoke before me has said that if a daughter is given her share, especially in a landed
property, there will be fragmentation of land. But why is this argument trotted out in the
case of a daughter's inheritance? The same thing applies if a man has more than one son;
if he has, say, four or five sons the land has to be fragmented; why is the argument not
trotted out then, and only trotted out when the question of daughters inheriting the
property comes up? The better thing would be that there
should be law against fragmentation and the property should be sold if it goes below the
prescribed limit. Or there is another alternative and that is collectivisation of the
land.

Then with regard to the question of marriage. I
am gratified, and the women of India will be very happy to know, that the principle of
monogamy is recognised, and if the Code comes into being then the principle of monogamy
will be established. Sir, we have felt that all civilised nations, all civilised
communities have adopted the principle of monogamy. Disrespect for women and all the
atrocities that we hear of perpetrated on women are I think due to the fact that this
principle of polygamy exists. If we had monogamy, I do not think that women would have
been abducted, married off or other things would have happened to them. This is a very
wholesome principle and I hope the House will accept it. -

But with regard to some of the conditions of
marriage there are one or two points that I would like to suggest. With regard to the
marriage of the sapindas and the definition of sapinda, that requires a little
revision; we are not quite satisfied with the definition
that is given in the Code. Then again, we would like the age of marriage also to be a
condition of a valid marriage. We have got the Sarda Act but
that is not satisfactory; that has not satisfied the people
because it has not been able to prevent child marriages; it is not effective. For that
reason we would like the law to be more drastic. If we want sixteen to be the age of
marriage, then it is very necessary that it should be included as one of the conditions of
valid marriage and I would like the Select Committee to make
that change.

Then with regard to divorce, even that from the
point of view of some does not go far enough. There is, however, one thing that I would
like to bring to the notice of the members of the Select Committee and that is, the time
given for desertion. If a man or a woman deserts his or her spouse, it has been provided,
he or she can divorce her or him after five years. Five years is the period given in the
Code. Even in "NaradSmriti" it is given that a childless woman should wait
for three years. After three years she can marry again. So why not also bring that
particular provision here that if a woman is childless, she need not wait till five years,
but can divorce her husband after three years? If a woman has got children, then five
years would be the right period, but for a childless woman three years would be a
reasonable period.

With regard to
guardianship, here also the Code has not made any changes in the present law. Father is
the natural guardian of the children. The mother does not come in. We would like the mother also to be a co-guardian of the children with the
father.

With regard to adoption, I think the whole
chapter should be scrapped. We are a secular State. We want to be a secular State.
Adoption in Hindu law is for religious purposes. Why should a secular State have anything
to do with a religious custom? What we are concerned with is whether adoption which is for
religious purposes should be recognised by the State for purposes of inheritance. We say
that it should not. If a child is adoptedwhether it is a boy or a girlwe would
like a daughter also to be adoptedif a child is adopted not for religious purpose,
but for real purpose, i.e. that the parents want a child, then that child should have the
same rights as the natural child. But, if there is adoption for religious purposes, only
then I think that adoption should not be recognised for purposes of inheritance.

These are some of the important points that I
would like the Select Committee to consider. Speeches have
been made, at least my Honourable friend Dr. Pattabhi has
made a very long speechpraising all sorts of timings
about our past traditions. We have looked too much to the past. We must now look to the
future. It is for the future generation that we are making this law. It is not for us, but
for the future generation that is coming after us that this
law will be applied. We have to look to the future conditions. After all, it is the
conditions that determine the law. The law reflects the society. The law reflects the
conditions in which the people live. We have to see that the
future generation is not fettered by our own prejudices with regard to marriage or divorce
or with regard to any other ideas that we may have today. I
hope the Select Committee will consider that and produce a Bill which will be a great boon
to the future Hindu society.

[f8]Shri Ram Sahai(Gwalior State):(English tmnslution of
the Hindi speech) Mr. Speaker, Sir, I have nothing to say particularly in reference to
the Bill. I appreciate the manner in which this Bill has been drafted after keeping in
view the needs of the present day Hindu Society. But, I find in it one or two defects, and
I think it necessary to explain them for the consideration of the Select Committee.

It has been laid down in Section 3(6) of Part
IV of the Bill that in case of minor girls, the consent of her guardian must be obtained
for her marriage. But so far as the question of declaring the marriage as invalid is
concerned, it has been stated in Section 5 that it shall not be deemed to be invalid
merely on the ground that such consent was not or had not been obtained. I fail to
understand why it should not be deemed to be invalid when it has been expressly laid down

that the consent of the guardian must be
obtained. If the consent of the guardian had been obtained by means of fraud or force,
that marriage can be deemed to be invalid, but if the consent had not been obtained at
all, then why should not the marriage be deemed to be invalid? On the contrary it has been
laid down that the marriage will not be deemed to be invalid merely for this reason. This
is the one defect which should be considered by the Select Committee.

Another point which I have to mention is in
regard to ' Succession ' and
which Mrs. HansaMehta has
just referred to in her speech. But I do not see eye to eye with the views expressed by
her and am of the opinion that the manner in which the order of succession has been
prescribed ignores the fundamental tenets of DharamShastras (Hindu Code of
Law). I do not mean that the women should not be given any rights. I am of the opinion
that, they have been given more rights here than men. I may point out that while a
daughter gets a share both in her patrimony and the property of her husband's family,
there does not exist anysuch provision in this Bill which gives a man a share in the
property of his father-in-law in addition to his patrimony. The men are thus, being
subjected to the same injustice which has uptil now been
done to the women. On the contrary, it can be argued that the share which his wife will
get in her patrimony will make up the deficiency. But after considering objects underlying
the Bill and the worldly conditions which have necessitated
it, it is felt that the real problem remains unsolved. The reason for this is that the
property which a woman acquires out of her patrimony shall be treated as her Stridhana and her husband will have no right to that,
therefore, he will not derive any particular benefit from this. In this way, I submit this
second point for consideration by the Select Committee which is very essential.

I have yet to say another thing. Whatever may
be the differences between the tenets of Dharamshastra and the
present day conditions, I feel that we must follow the fundamental principles propounded
therein; and keeping these in view we should decide all the issues. We should make only
those changes which are considered necessary in view of the present conditions and trend
of the society. We should not resort to introduce any change merely under excitement or in
imitation of the western civilisation which may obstruct the growth of our society and
produce some sort of difficulties that may not be desirable.

Therefore, I would
submit that those who are members of the Select Committee should consider these things and
try to make necessary amendments.

[f9]Dr. B. V. Keskar(U.P.: General) : Sir, I take this
opportunity of congratulating the Honourable the Law Minister for bringing this Bill
forward in spite of the inordinate delay that has taken place since this idea was first
conceived. Sir there is no doubt that this is a very, very important Bill. As my
Honourable friend. Dr. Pattabhi
said, I do not think there has been any bill so radical and so revolutionary which is
trying to change the very foundations of Hindu society, a society which has remained
fossilized for the last thousand years. No doubt and it is to that that I want to draw the
attention of this House and the members of the Select Committee, the very fact that this
society has remained fossilized for the last thousand years and has developed such
inertia, such lethargy, in the body politic that all manner and all kinds of forces will
come forward to impede the passing of this Bill and passing of any Bill to change the
existing structure of Hindu society. It is to this inertia,
this lethargy of Hindu society which has probably become its bane, that the members of the
Select Committee and the honourable the Law Minister will have to look to, because I have
no doubt that until this Bill is passed, to the very last moment every sort of effort,
will be made to see that this Bill does not become a law. The changes that are suggested
are such that there is a fundamental change in Hindu law. I
know that orthodoxy will try in every way. My honourable friend, Mr. NaziruddinAhmad was good enough
to voice the alarm of a certain section of the orthodox society about the revolutionary
nature of this Bill. No doubt, some of the changes suggested appear revolutionary. But as
Dr. Paltabhi rightly observed the changes are really not
revolutionary. They are due to the fact that for the last so
many centuries, Hindu society has not been allowed to evolve. So we have to try to change
in a few days what would have been done in centuries. I would, therefore, ask the Members
of the Select Committee not to fall a prey to the pressure of what is called the so-called
orthodox opinion which is really the opinion of the inertia of so many centuries which
does not want anything to change, but after thinking over it for years and years, which
really considers that any change is an attack on Hindu religion. I would ask them to guard
against these and go forward in spite of all this pressure.

There is no doubt that quite apart from the
question of making any radical change in Hindu law, the necessity for consolidating the
Hindu law was very urgent. Sir, the present day Hindu law is a maze; it is a jungle like
the Turai or Sunderbans in which
all sorts of practices and traditions come up; in which all that puranic book and prevailing customs in many parts of India, in many regions and provinces, in many castes, sub-castes;
sub-sub-castes come into play and which is naturally a paradise for lawyers. This to a
certain extent might not have been undesirable, but it has grown to such an extent that
the time has come when this maze of traditions and counter-traditions should be put an end
to and we must rationalise and consolidate the law. This is quite apart from any question
of changing the Hindu Law. So from both points of view, I consider that a bill of this
kind is overdue.

I rather would warn the members of the Select
Committee to see that the Bill is not delayed too much. Already the first Committee was
appointed in 1944. The idea and some of the proposals about the Bill have been circulating
for the last so many years and even now we find before us proposals which will circulate
it the more. Now, I would like them to try to curb this period of discussion as little as
possible and to bring this Bill before the House, the latest before the next session. Sir,
I welcome this Bill.

[f10] Begum
AizazRasul(U.P.: Muslim) : Sir, I do not
desire to take up much time of the House, because I know that
the time is very limited, but I think I would be failing in my duty if I do not stand up
and welcome the measure that has just been brought before the House by the Honourable the
Law Minister. Sir, it is in the fitness of things that with the achievement of freedom in
this country and the establishment of a National Government, a measure of this kind should
have been brought before this House. I only hope that the Select Committee will not delay
giving its report and that this House will have an opportunity of passing this measure
into law and putting it on the statute book as early as possible.

There is no doubt.
Sir, that the provisions of this Bill are extremely
far-reaching and the provisions about marriage, divorce, inheritance and adoption that are
being brought forward are extremely radical measures. It is
an extremely important matter and the codification of Hindu law will certainly be looked
upon as one of the most momentous pieces of legislation that has ever been brought forward
in this House.

Sir, without going into the different clauses
of this Bill, I welcome this measure. Sir, it is by the status of the women of a country
that the society of that country is judged and there is no doubt that the Hindu women were
very backward in India. The Muslims have taken pride in the fact that the Shariat law gives
them great rights. I agree with my Honourable friend. Dr. Pattabhi when he said that although the Shariat has given many rights, they are not
followed in the letter and I do know that there are many parts in India today where in
spite of the fact that Muslim women do enjoy all the rights given to them by Shariat, they are not
being followed in the letter at all. In the Punjab the customary law still prevails and
the daughters are absolutely disinherited from the property of their fathers. In the same
way in the U.P. although in some parts of the Province Shariat has prevailed, Muslim women do not share in
the property amongst the talukdars
and therefore, I am glad that this piece of legislation that is being brought
forward will put the Hindu women on a par with Muslim women as far as their rights are
concerned. As I said. Sir, I hope that no section of society
will oppose this measure. There is no doubt that this being such a fundamental treasure
and also connected in many ways with religion, there will be certain sections of society
amongst the Hindus who will oppose it, but. Sir, it needs
courageous minds to bring forward courageous measures and therefore, I hope that orthodox
opinion in the country which looks with disfavour upon this legislation will not stand in
the way of its being passed and I hope that this Bill that is going now to the Select
Committee will come out even in a more improved form and that this measure will not be
delayed. Society should not be static and as we go forward on the road to progress, it is
necessary that women should come into their own and unless the women of India stand on
their own feet economically, it is absolutely impossible for India to go forward on the
road to progress. With these few words, I give my whole-hearted support to this measure.

[f11]ShriRohiniKumarChaudhuri (Assam : General) : Sir, I think I must
congratulate the Honourable Minister-in-charge of this Bill. He must have greatly liked
this hour of the day when he has received so much ovation from certain sections of the
House. But, I think, I should not be considered to be criticising in a wrong spirit when I
say that the title of this Bill is a misnomer; it is not a Hindu Code but it should more
appropriately have been called a Hindu Women's Code. Sir, I do not understand why only
three or four days after we passed the Resolution about having a secular Government and
stopping of communal organisations we should have gone out of our way to legislate in such
a hasty manner only for a particular community. After having decided to eschew all
communal organisations I should like to know why we should not have been given time to
think out and draw up a piece of legislation which would include all subjects of the
State, Hindu, Muslim, Christian, etc. If the Honourable Minister is not led away by fair
influences in this House, I think it is not yet too late to withdraw this Bill and if he
withdraws it with a promise to bring in a more comprehensive Bill at a later date, his
action in so withdrawing would have greater merit than the withdrawal which he made a few
minutes ago. I know that some women of our country are very anxious to snatch away a
portion of inheritance from their brothers; I know some influential women of this country
are anxious to put an end to marriages to which they were unwillingly led and which they
have found unbearable. It is also perhaps a fact that some educated and progressive ladies
of our country who cannot think of polygamy of any kind are now anxious to have
legislation for the removal of these things. By enacting this Hindu Code you are
revolutionising the whole structure of Hindu life and law and custom. But for whom are you
doing it and who is going to be benefited by it? The large mass of people who depend on
agriculture and agricultural property are outside the pale of this legislation. Are the
poorer Hindus in our villages clamouring for divorce? Are they clamouring for properties
to be got from their parents? Not at all. You want this legislation for what you call the
enlightened section of our people, men and women. It is for the rich man who gave his
daughter in marriage to a poor man who hoped to give his wife some position but has not been able to give it and his daughter has become
unhappy; and so he wants to get rid of this marriage. This legislation is going to help
that kind of individual.

Then, Sir, with reference to custom and usage,
custom plays a very important part in Hindu law as administered in my province. I want to
lay particular stress on our province because there is no one who represents us in the
Select Committee. As all lawyers would know, the customs which have taken the place of
Hindu law in Assam are very peculiar. I can cite the Privy Council case of "MuniramKatita" versus "KeriKalitani" which has practically revolutionised Hindu law as
administered among the Hindus.

Then there is the question of tribal people.
According to this Bill they
would be considered Hindus and they are really Hindus if
they have not adopted Islam or Christianity
or Buddhism, etc. Are you going to thrust on them this piece of legislation? If you ask
them to have this system of inheritance they will simply revolt against you. There are
different kinds of custom in Assam. Amongst the Khasia people of Assam the youngest daughter
inherits the property. Now you are giving it to the widow, the son's widow, the widowed
daughter, the son's daughter-in-law and so forth. Will they
tolerate it for a moment if you introduce this legislation among them? You have introduced
sacramental marriage and civil marriage. Shall I tell you how the Cacharis get married?
Some boy and girl come to know each other and the girl is forcibly taken away from the
parents after which the ceremony of marriage takes place. Will you ask them to got to the
Registrar's Office and get married there?

Then we are very much against dowry. These rich
people who can afford to give dowry get their daughters married very quickly, even though
they may be blind or ugly. If I had no money I would mortgage my house and everything that
I possess in order to give a dowry and thus get rid of my daughter. But what will happen
now? The daughter will inherit part of the property. So when I seek brides for my
sonsfortunately I have five sons1 shall look forward to that family where the daughters will inherit something
and not go to an ordinary person who will have to borrow or mortgage his property. Are you
going to legislate for poor people in this way? Among the poor there is only agricultural
property. If you include the tea gardens that is different, but there is no agricultural
property among them. And there is no question of big inheritance and therefore, the poor
man's daughter, however beautiful and accomplished she may be has no chance. I think this
measure requires very serious consideration, so far as customs and usage and other points
are concerned and it is not proper to pass this legislation in such hurry. I should have
said something more also. Sir, but in this House there are
persons who are still unmarried; so it would not be fair on my part to disclose all my
objections to this Bill.

[f12] The
Honourable Dr. B.R.Ambedkar: Mr. Speaker, my task is considerably lightened
by the fact that the Bill has received such an ample measure of support from this House. I shall, therefore, confine myself to replying to some
of the points which have been made by the speakers who have participated in this debate.

I would begin with the observations made by my
honourable friend, Mr. NaziruddinAhmad.
Sir, I thought that the Legislature was not a court and that a Member of this House who is
a lawyer certainly does not come here either to practise or to plead. But somehow my
friend either for fee or out of pure generosity, undertook the task of representing the
views of some of his clients who probably had not the courage to say what they had in
their mind. I shall, however, not raise any technical objections but deal with the points
that he has made.

Sir, his complaint was that the Bill had no
sufficient publicity and that the public was not given as ample an opportunity as the
importance of the measure required. I should have thought that the clients of my
honourable friend had rather misinformed him on this point. This Bill had its origin in a
legislation which took effect in the year 1937. Ever since that year the provisions of
this Bill have been bandied from one side to the other, from committee to committee. For
instance in the year 1941, the Home Department appointed a Committee to consider some of
the difficulties that arose out of the Women's Rights to Property Act of 1937, to report
upon the difficulties and to suggest remedies. This Committee which is known as the Rau Committee made its report on the 19th June 1941. My
Honourable friend, if he had referred to this report would have seen the immense amount of
publicitythat Committee gave to its
proposals, the number of questionnaires that it issued, the statements that it received,
the witnesses that it examined and the peregrinations it undertook from province to
province in order to ascertain local public opinion. Again in 1942 this very Committee
submitted two draft Bills, one on succession and the other on marriage. The Hindu
Succession Bill was introduced in the Assembly in 1943. That was referred to a joint
Committee of both Houses. That joint committee again invited public opinion and a volume
of them were collected and circulated to the then legislature in existence. Having regard
to all these, I am sure that the statement made by my honourable friend that the
Government had not given sufficient publicity cannot be accepted as truth.

He also referred to the report, the Minority
Report of Justice Mitter, where also he has analysed the pros and cons of the various points contained in
this Bill. Sir, I do not like to say anything derogatory of
a member of a Committee, who has done such useful work, but I cannot help saying that this
member really ran away from his own opinion. If my honourable friend, Mr. NaziruddinAhmad were to read the
report of the majority he will find that all the propositions contained in that Bill which
give rights to women were really based upon a publication of this member of the Committee
in the year 1930. In that book he had propounded the view that the case law which had
limited the rights of the women had nb foundation.
Ultimately for reasons best known to him he did no submit that there is no point in this
argument.

My honourable friend also referred to the fact
that this Bill is after all confined to property other than agricultural land. The
conclusion he drew from that fact was that this codification was only a partial
codification, because a large part of the property which is the subject matter of inheritance is felt untouched by the provisions
of this Bill. Sir, there are two explanations for the non-inclusion
of agricultural property[f13]. My honourable friend, if he refers to the
Schedules to the Government of India Act, where the subject matter of legislation for
Centre and the Provinces have been set out will find that land is put in the " Provincial List ". As
a result of the judicial interpretation given by the Federal Court it was held that the word " land " or item " land ", which is included in the "
Provincial List " not merely covered tenancy land but
also covered succession to land and consequently any provision with regard to the
succession to land made by the Central Legislature would be ultra vires. In order that this may not happen, the
Committee very deliberately exempted agricultural land from the provisions of this Bill.
But what I would like to say is something different. I should have thought that the
omission of land from this Bill far from being a flaw or a
fault in the Bill was probably an advantage because I believe there is no necessity that a
uniform law of inheritance should apply to all sorts of property. Property varies in its
nature, varies in its importance in the social life of the community and consequently it
may be a matter of no mean advantage for society to have one set of law of inheritance for agricultural property and another set of law for
non-agricultural property. It may be that on a better consideration of the situation,
Indian or Hindu society may come to the conclusion that land which is the foundation of
its economic life had better be governed by the law of primogeniture so that neither the
junior sons nor females may take part in the inheritance. As I said, the question having
been left open it is to the advantage of the society that it may consider the matter denovo and afresh. I do not, therefore, regard that the
comment made by my honourable friend on the part of this Bill is really a matter to be
apologised for.

Coming to my friend, Mr. Chaudhuri, he considers, this piece of legislation as a
communal legislation. I agree that in as much as it refers to Hindu society, which is one
of the many communities inhabiting this country, it might
well in a logical sense be called a communal piece of legislation. But what is the
alternative? If my honourable friend's alternative was that there ought not to be communal
laws of inheritance and communal laws of marriage but there ought to be a common civil
code, applying to all sections all communities, all persons: in fact applying to citizens
without discrimination as to religion, creed or caste, I am certainly one with him.
Certainly, that is not his conclusion. His conclusion is, if I understand him, that this
legislation by reason of the fact that the other day a view was expressed that the future
society here stated would be secular had no right to legislate for a secular community:
that would be a most disastrous conclusion. This country is inhabited by very many
communities. Each one has its special laws and merely because the
State desired to assume a secular character it should withdraw itself from regulating the
lives of the various communities, undoubtedly would result in nothing but chaos and
anarchy. I certainly myself am not prepared to subscribe to that sort of a proposition.

His second comment was that the Bill had not
taken into consideration the customary law. He cited some ruling of the Privy Council. I
should have thought that at this hour of the day it was unnecessary to cite the authority
of the Privy Council because it has been well established by a long course of decisions,
that so far as the Hindus are concerned custom would override the text of the "Smriti". We all know this. But what are we doing? What are
we doing is this. We are shutting down the growth of new customs. We are not destroying
existing customs. The existing customs we are recognising because the rules of law which
are prevalent in Hindu society are the result of customs. They are born out of custom and
we feel that they have now grown so sturdy that we can indeed give them flesh and life in
the body politic by our legislation.

He also said that we had not taken into
consideration the question of the tribal people, whose life
is undoubtedly governed in a large measure by customary law. If my friend had read the
definition in this code as to who is a Hindu and who is not and to whom this Code applied,
he would have seen that there is a clause which merely said that persons who are not
Muslims, Parsis or Christians shall be presumed to be
Hindus: is: not that they are Hindus. The result is that if
a tribal individual chooses to say that he is not a Hindu it would be perfectly open to
him under this Code to give evidence in support of his contention that he is not a Hindu
and if that conclusion is accepted by the Court he certainly would not be obliged by
anything contained in this Bill.

ShriRohiniKumarChaudhuri: My point is
that he did not like to be called a Hindu and still wanted to retain all the customs of
the Hindu!

The
Honourable Dr. B.R.Ambedkar: The position taken is
this : that once a person chooses to call himself a Hindu, he must accept
the generality of law which is prescribed for the Hindu. We do not want this anarchy. A
Hindu is a Hindu for all purposes. If a tribal person does not want to be a Hindu the way
is open to him to prove that he is not and the Bill will not apply to him.

Then my friend.
Dr. Sitaramayya asked me to tell him whether the rule of law
contained in this Bill, whereby the women will acquire absolute estate in the property
which they inherit, will apply to widows who have already taken the estate before the
passing of the Act. I am afraid I must say that the Bill has no retrospective effect.

Nor would it be possible to give retrospective
effect to the principles of the absolute property of women for the simple reason that long
before this Bill will come into existence, vested rights would have been created in that
estate and it would not be right and proper to divest them however much our sympathy may be with the widow.

Mrs. HansaMehta raised several questions indicating that the women and particularly herself were not satisfied with
some of the provisions contained in the Bill relating to the
rights of women. It may be that in an ideal sense the Bill does not come up to
expectations. But I would like to tell her that she must remember that this society is an
inert society. The Hindu Society has always believed that law-making is the function
either of God or the "Smriti" and that Hindu Society has no right to change the
law. That being so, the law in Hindu Society has remained what it was for generations to
come. Society has never accepted its own power and its own responsibility in moulding its
social, economic and legal life. It is for the first time
that we are persuading Hindu Society to take this big step and I have not the slightest
doubt in my mind that a society which has bucked up courage
enough to tolerate the large step that we are asking it to take by reason of this Bill,
will not hesitate to march on the path that remains to be trodden and reach the goal that
she has in mind.

Sir.much has been made of the fact that there is a
great deal of public opinion which is opposed to this Bill. I have certainly not weighed
the opinions that we have received but I do like to say this, that this is hardly a
question which we can decide by counting heads. This is not a question which we can decide in accordance with the opinion of the
majority. When society is in a transitory stage, leaving the past, going to the future,
there are bound to be opposing considerations: one pulling towards the past and one
pulling towards the future and the test that we can apply is no other than the test of
one's conscience. I have not the slightest doubt in my mind that the provisions of this
Bill are in perfect consonance with the conscience of the community, and I have therefore,
no hesitation in putting forth this measure although it may be as a matter of fact that a
large majority of our countrymen do not accept it.